People v Areizaga (Luis)

[*1] People v Areizaga (Luis) 2008 NY Slip Op 51462(U) [20 Misc 3d 133(A)] Decided on July 16, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 16, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ
. 2007-247 W CR 2007-248 W CR 2007-249 W CR

The People of the State of New York, Respondent,

against

Luis Areizaga, Appellant.

Appeals from three judgments of the City Court of Yonkers, Westchester County (Arthur J. Doran III, J., at the pleas, Charles D. Wood, J., at sentencing), rendered January 2, 2007. The judgments convicted defendant, upon his pleas of guilty, of, respectively, (1) public lewdness and exposure of a person; (2) aggravated harassment in the second degree and harassment in the second degree; and (3) two counts of aggravated harassment in the second degree and harassment in the second degree.On the court's own motion, appeals consolidated for purposes of disposition.

Consolidated appeal held in abeyance, application by Rachel J. Filasto, Esq., to be relieved as counsel granted and new counsel assigned to prosecute the appeal. Rachel J. Filasto, Esq., is directed to turn over all papers in her possession to new counsel assigned herein; and new counsel shall serve and file a brief on behalf of defendant within 90 days of the date of this decision and order, and the People shall serve and file their brief within two weeks thereafter.

Assigned counsel submitted an Anders brief that does not reflect that counsel determined the appeal to be frivolous after "a conscientious review of the record" (People v Stokes, 95 NY2d 633, 636 [2001]). At minimum, an Anders brief must "refer[] to anything in the record that might arguably support the appeal" (Anders v California, 386 US 738, 744 [1967]) via "a statement of the factual and legal issues relevant to the conviction and sentence sufficient to enable the court to evaluate and correctly decide the appeal" (People v Bing, 144 AD2d 249 [1988], quoting People v Miller, 99 AD2d 1021 [1984]). As an appellate court's review of the record cannot "substitute for the single-minded advocacy of appellate counsel" (People v Casiano, 67 NY2d 906, 907 [1986]), a brief that fails to satisfy that standard deprives a defendant of the right to the effective assistance of appellate counsel (People v Stokes, 95 NY2d [*2]633 [2001], supra; People v Johnson, 11 Misc 3d 136[A], 2006 NY Slip Op 50494[U] [App Term, 9th & 10th Jud Dists 2006]). Accordingly, appellate counsel's application to be relieved of her representation is granted and new counsel is assigned to prosecute the appeal.

Rudolph, P.J., McCabe and Scheinkman, JJ., concur.
Decision Date: July 16, 2008